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Mohd. AmIn and anr. Vs. Dalip Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 56 of 1984
Judge
Reported inAIR1985J& K93
ActsJammu and Kashmir Code of Civil Procedure (CPC) , 1977 Svt. - Order 18, Rule 3
AppellantMohd. AmIn and anr.
RespondentDalip Singh and anr.
Appellant Advocate Shaista, Adv.
Respondent Advocate K.N. Bhat, Adv.
Excerpt:
- .....district judge, srinagar, dated 7-5-1984, affording anopportunity to the respondents-plaintiffs to lead evidence in rebuttal. 2. the plaintiffs-respondents have filed a suit for declaration. the trial court framed several issues in the case placing onus of some of them on the plaintiffs and of some others on the defendants. the plaintiffs produced some evidence. on 8-12-1983 the evidence of the plaintiffs came to be close by the court order, except the statement of the plaintiffs. on the next date fixed by the court the plaintiff was not present and the court closed his evidence. thereafter the defendants produced their evidence. on 7-5-1984 the defendants closed their evidence and the court directed the plaintiffs to lead evidence in rebuttal. by this order the defendants have felt.....
Judgment:
ORDER

S.M. Rizvi, J.

1. This is a motion for admission of a Civil Revision directed against the order of the learned Additional District Judge, Srinagar, dated 7-5-1984, affording anopportunity to the respondents-plaintiffs to lead evidence in rebuttal.

2. The plaintiffs-respondents have filed a suit for declaration. The trial Court framed several issues in the case placing onus of some of them on the plaintiffs and of some others on the defendants. The plaintiffs produced some evidence. On 8-12-1983 the evidence of the plaintiffs came to be close by the Court order, except the statement of the plaintiffs. On the next date fixed by the Court the plaintiff was not present and the Court closed his evidence. Thereafter the defendants produced their evidence. On 7-5-1984 the defendants closed their evidence and the Court directed the plaintiffs to lead evidence in rebuttal. By this order the defendants have felt aggrieved and hence the revision.

3. I have heard the learned counsel for the parties and have examined the record of the learned trial Court.

4. The short controversy in this revision petition is as to what is the last stage for exercising the option to reserve the right of rebuttal to the evidence adduced by the other party under Order 18 Rule 3 of the Civil P.C.

5. The question herein would revolve around the specific language of Order 18 Rule 3 which may be reproduced as under : --

'Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and in the latter case, the party beginning may produce evidence on the issues after the other party has produced all his evidence, and the other party may then reply especially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.'

6. The learned counsel for the petitioners has argued that the respondents having not reserved the right of producing rebuttal evidence at the time when they began to produce the evidence or at the time when they closed the same before the petitioners-defendants were asked to lead their evidenceand they have therefore lost the said right, and the Court could not on its own confer such a right on them, and by doing so it has enabled the respondents to make up all the lacuna in their case to the prejudice of the petitioners. According to Miss Shaista the party beginning to lead evidence has at the very outset before leading any evidence to make its option clear as to the reservation of its right to lead rebuttal evidence after the other party has produced its evidence on its issues. In case the party beginning fails to reserve its right in such a manner, it is debarred to lead any evidence in rebuttal.

7. The learned counsel for the respondents has on the other hand argued that under Order 18 Rule 3 no stage for exercising such option has been envisaged.

8. The learned counsel for the petitioners has referred me to AIR 1982 Pun & Har 432; AIR 1977 Madh Pra 191; AIR 1970 Raj 278 and AIR 1983 Punj & Har 210.

9. On perusal of the said authorities it appears that except AIR 1977 Madh Pra 191, the other authorities are not fully supporting the case of the petitioners. The consensus in the said authorities is that such option must be exercised at any time before the other party begins its evidence and that the Courts must not construe this provision very strictly. In AIR 1977 Madh Pra 191, however, it has been held that the stage when the pariy beginning has to apprise the Court of his election to reserve his rebuttal evidence is when he begins to lead evidence.

10. The learned counsel for the respondents had placed reliance on 1981 Srinagar LJ (J&K;) 239, wherein it has been held that all that the Court has to be satisfied about is whether or not the party beginning has adduced any evidence by way of rebuttal before the commencement of evidence by the other party. If it finds that no such rebuttal evidence has come on record, it should permit the party beginning to produce such evidence.

11. I have given my serious consideration to the ratios of the above cited authorities. It is the well established rule of prudence thatprocedure is the handmaid of justice intended to advance its course and not to obstruct the same. Order 18 Rule 3 being essentially a procedural provision, in my opinion, therefore it calls for a somewhat liberal interpretation as against an overtly strict one so as to serve the said purpose.

12. While reading Rule 3 thoughtfully it would appear that no stage for exercising the option to reserve the right of rebuttal evidence has been envisaged therein. Had the legislature intended such a strict type of reservation to be made by the part) beginning it would have used the words 'expressly reserve' rather than simple 'reserve' in the said Rule. The very omission of this kind in the provision shows that a liberal interpretation is to be given to the same in respect of the stage of exercising such option. That apart even the common sense would not admit the rationality of a rule not giving an opportunity to a party of rebutting the evidence produced by his opponent. Order 18 Rule 3, is also based on the same reasoning of common sense in providing an opportunity to each party to produce evidence not only on the issues onus whereof is on it but also rebuttal evidence on the issues onus whereof is on the opposite party. Providing of such opportunity should not prejudice the opposite party is the core of Order 18 Rule 3. In giving a reasonable meaning to Rule 3, its larger purpose cannot be lost sight of, nor is it to be construed in isolation from the preceding Rules 1 and 2. The said Rules provide for the right to begin in the order in which the parties are to state their case and produce evidence in support of the issues and the burden of proof whereof rests on them. When read along with those provisions it seems to be more than manifest that the real object of Rule 3 is to put the opposite party on its guard that the evidence it is going to lead would be challenged not only by the cross-examination of witnesses but also by positive evidence by way of rebuttal. Rule 3 seems intended to avoid and obviate the prejudice which may otherwise be caused to the opposite party by taking him by surprise. The close reading of Rule 3 shows that it does not prescribe any inflexible time limit for exercising the option of reserving the right of rebuttal. That being so the statute is to be construed with a certain modicum of flexibility. It seems to follow thatthe stage for reserving the right to lead evidence in rebuttal should remain open up to the time beyond which it might tend to cause prejudice to the other party. This would be the point of time before the commencement of the evidence by the opposite party.

13. In the present case the plaintiffs evidence has been closed by the Court itself and therefore the question of reserving the right of rebuttal by them before the commencement of evidence by the defendants does not arise. The burden of proof of some issues appears to have been placed on the defendants and the plaintiffs have not adduced any rebuttal in this behalf while leading their evidence on the issues onus whereof was on them. The plaintiffs must have been therefore labouring under the impression that they would produce their rebuttal after the defendants adduce their evidence. It appears that such practice, though wrongly, is followed in our Subordinate Courts of providing an opportunity to lead evidence in rebuttal to the party which has begun, in respect of the issues onus whereof is on the other party. The learned trial Court too has laboured under the same impression while giving an opportunity on its own, to the plaintiffs to lead evidence in rebuttal. In those circumstances this technical error should not debar the plaintiffs from leading their evidence in rebuttal in respect of the issues onus whereof is on the defendants.

14. The other grievance of the petitioners is that while leading their evidence they were under the impression that the respondents have closed their evidence in toto and no evidence was going to be produced by them in rebuttal and that by such rebuttal evidence their case will be prejudiced. Firstly this impression appears to be optimistically misconceived. They had the opportunity of producing evidence not only on the issues onus whereof was on them but also on the issues onus whereof was on the plaintiffs. If they have not availed of this opportunity, it was at their own risk. Secondly this grievance of defendants, if genuine, can be redressed by the learned trial Court by giving them an opportunity to lead further evidence, if it is necessary for the just decision of the case.

15. From the circumstances of the case, it appears that both the parties as also the learned trial Court have all laboured under a wrong impression about the stage of exercising the option of reserving the right of rebuttal. They therefore both deserve opportunity to lead further evidence. The plaintiffs should be given an opportunity of producing rebuttal evidence as has already been done by the learned trial Court. The defendants too should be given an opportunity to lead evidence, if they so choose,before the plaintiffs lead their rebuttal evidence.

16. The revision is decided as indicated above. Let the record be remitted back to the I earned trial Court for proceeding further with the case in accordance with the observations made above. The revision file be consigned to records.


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